Robin Pickard successfully appeals a maternity-related dismissal to the EAT

20th June 2024

The Employment Appeal Tribunal (“EAT”) handed down on 20th June its decision in Ballerino v The Racecourse Association Ltd [2024] EAT 98. Robin Pickard (pictured here) appeared for the Claimant at the EAT hearing in May 2024 before the President of the EAT, Mrs Justice Eady DBE (sitting with members).

While the Claimant was on maternity leave in 2018-2019 her role was replaced by a position which continued to perform the same functions as her existing role, albeit with some additional responsibilities. Before the Employment Tribunal (“ET”), the Claimant argued that her redundancy was a sham and that the company had discriminated against her because she was on maternity leave.

Before the EAT, Robin successfully argued that the ET had failed to apply the correct legal test when determining whether the Claimant had been made redundant. The test for redundancy (under s.139 of the Employment Rights Act 1996) focuses on whether the company’s requirements for “employees to carry out work of a particular kind” had ceased or diminished (or were expected to cease or diminish). Robin argued that the ET did not analyse the facts by reference to that legal test.

The EAT accepted Robin’s submissions and held that it was insufficient that the ET had assessed the Claimant’s redundancy “as a matter of impression” (per Robinson v British Island Airways Ltd [1978] ICR 304). The statutory language contained in s.139 needed to be applied.

The matter will be remitted to the ET for fresh consideration.

Robin Pickard is a barrister specialising in employment and discrimination cases. He joined 3PB in March 2024, having completed a specialist employment law pupillage at a boutique employment law firm in London. Robin has advised senior executives and other regulated professionals in high-value employment litigation involving discrimination, whistleblowing and misconduct in the workplace. He has also advised and represented clients subject of internal investigations. To instruct him, please contact his clerk Matthew Scanlan.